Linda Jo Shoe Co.

LINDA JO SHOE COMPANY 179 Linda Jo Shoe Company and Retail, Wholesale and Department Store Union, AFL-CIO. Cases Nos. 16-CA-1272 and 16-CA- 1293. September 30, 1960 DECISION AND ORDER On June 13, 1960, Trial Examiner Leo F. Lightner issued his In- termediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. He found further that the Respond- ent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended dismissal of such allegations. Thereafter, the Respondent filed exceptions to the Intermediate Report. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Jenkins, and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Linda Jo Shoe Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Retail, Wholesale and Depart- ment Store Union, AFL-CIO, or any other labor organization of its employees, by discriminating in regard to the hire and tenure of their employment or any term or condition of employment. (b) Maintaining a rule broadly prohibiting its employees from engaging in solicitation and other union activities on company premises during their nonworking time. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right of self-organization, to form ' As no exceptions were filed to the Trial Examiner 's findings that the Respondent did not violate Section 8 (a) (3) by discharging Opal Kays and Dave H . Kays, we adopt such findings pro forma. 129 NLRB No. 22. 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activity for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Christine Arterburn immediate and full reinstatement to her former or substantially equivalent position, without prejudice to her seniority or other rights and privileges previously enjoyed. (b) Make whole Christine Arterburn for any loss of pay she may have suffered by reason of Respondent's discrimination against her in accordance with the recommendations set forth in the section of the Intermediate Report entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due and the rights of employment under the terms of this Order. (d) Post at its plant in Gainesville, Texas, copies of the notice attached hereto marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being signed by the Respondent's authorized representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Sixteenth Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges that Opal and Dave Kays were discharged in violation of the Act, be, and it hereby is dismissed. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership in, or activities on behalf of, Retail, Wholesale and Department Store Union, AFL-CIO, or any other labor organization, by discharging any of our em- LINDA JO SHOE COMPANY 181 ployees or in any other manner discriminating against our em- ployees in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT maintain any rule prohibiting employees from engaging in solicitation and other union activities on company premises during their nonworking time. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organiza- tion, to form labor organizations, to join or assist Retail, Whole- sale and Department Store Union, AFL -CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activities for the purpose of collective bargaining or mutual aid or protec- tion, or to refrain from any and all such activities. WE WILL offer to Christine Arterburn immediate and full re- instatement to her former or substantially equivalent position, without prejudice to seniority or other rights and privileges pre- viously enjoyed, and will make her whole for any loss of salary or pay suffered as a result of the discrimination against her. LINDA JO SHOE COMPANY, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof,, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding was heard before the duly designated Trial Examiner in Gaines- ville, Texas, on December 9, 10, and 11, 1959, on the complaints and amendments to the complaints of the General Counsel and answers of Linda Jo Shoe Company, herein called the Respondent . The issues litigated were whether Respondent violated Section 8 (a)(1) and (3) and Section 2(6) and (7) of the Labor Management Relations Act, 1947, as amended. The parties waived oral argument, and briefs filed by General Counsel and Respondent have been carefully considered. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent is a Texas corporation , maintaining its office and factory at Gaines- ville, Texas, and engaging in the business of manufacturing shoes, moccasins, and sandals. In the 12-month period preceding the issuance and service of the com- plaint in September 1959 , Respondent purchased raw materials consisting prin- cipally of leather valued in excess of $50,000, of which more than $50,000 worth was shipped in interstate commerce to its plant from points outside the State of Texas. During the same period , Respondent sold products consisting principally of shoes valued in excess of $50 ,000, of which more than $50,000 worth was shipped in interstate commerce from its plant to points outside the State of Texas. I find that Respondent is engaged in commerce within the meaning of the Act. 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED Retail , Wholesale and Department Store Union , AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and sequence of events The primary issues to be resolved are whether the discharges of Opal Kays, on July 27, Christine Arterburn, on July 30, and Dave H. Kays, on September 19, 1959, were for the reason that they had joined and assisted the Union or engaged in other concerted activities for the purposes set forth in Section 7 of the Act, and whether Respondent for the same reason has failed and refused to reinstate the employees named to their former or substantially equivalent positions or employment. Also, whether the Respondent, through its president, Jack Silven , did on or about July 29, 1959, make a speech to the employees during which he told them that anyone who passed out cards in the factory or on the premises would be subject to immediate dismissal, if so, whether such act constituted interference, restraint, and coercion of Respondent's employees in derogation of Section 8(a) (1) of the Act. Respondent acknowledges the discharges on the dates alleged, asserts that said discharges were for cause, and denies that any statement by Jack Silven contravened the proscrip- tions of the Act. Jack Silven, president of Respondent for the past 4 years, has been with the firm approximately 101/2 years . He has been personally responsible for the executive duties such as buying, selling, and supervising the production . During the first 5 years of this period, Respondent 's production was confined to moccasins , then they went into production of sandals . Commencing 4 years ago, a lasted shoe was produced. Ninety-five percent of the products are sold in the retail range of $3 to $4 "popular price range of shoes." Ninety to ninety-five percent are ladies' footwear. The balance are a few children 's shoes and occasionally a few men 's specialty items, i.e., moccasins and sandals. All of the production is in accordance with specifications provided by customers,' with the exception of 3 or 4 percent of the total production, which is comprised of a shoe known as Jo Linda distributed to small dealers in the area. The moccasin production declined from a peak in 1953 to a low early in 1959, however, in May 1959 there was a temporary increase in moccasin production which subsided in July and August of the same year. Respondent's offices are in the same building with the factory . The factory is divided into two buildings and sandals are produced in the smaller or east building, lasted shoes and moccasins are produced in the west building. The west building is divided into several departments, identified as the cutting room , the fitting room, the lasting room, and a small section now used for the production of moccasins. The finishing operations , with which we are here principally concerned, are done in the east building. Supervisory personnel include Jack Silven , president of Respondent; Mr. Weinstein, general manager; Henry L. Curtis, superintendent of the factory; and Elmer Ross, assistant to the superintendent and foreman of department 50, the finishing department .2 The supervisory status of Sam Pollard , Maurine Cunningham, and Nelda Clark are set forth, as necessary, below. Silven estimated there were approximately 550 employees engaged in production in July and August 1959. Respondent operated on a one-shift basis. Normal work hours were from 8 a.m to 12 noon and 1 to 5 p.m. Production was shut down during the noon hour and most employees living in the immediate area left the plant at lunch time. Silven testified that there were a substantial number of service people who moved the work around , servicing the employees in such a way that the em- ployee could remain at his machine and production was kept moving at a fairly steady pace. The Charging Party herein commenced an effort to organize Respondent's em- ployees sometime in July 1959 . While background circumstances are obscure, a 1 Silven enumerated these customers as International Shoe Company ( the largest cus- tomer, representing a little over one-third of the total production), Sears Roebuck, Montgomery Ward, Shoe Corporation of America, General Shoe, and Karl's. The last Is the only customer about whom there is further discussion below It Is a retail outlet having some 285 stores, purchasing an estimated 15 percent of Respondent's production in the last 2 years, estimated at between $600,000 and $750 ,000 worth of business a year. !'The other foremen were Identified as Max Hatman , cutting room ; Harry Means, fitting room ; and Mr. Thacker, lasting room LINDA JO SHOE COMPANY 183 meeting was held at the Curtwood Hotel, in Gainesville, on Saturday, July 18, 1959. Present at this meeting were: Jim Pearce, International representative of the Retail, Wholesale and Department Store Union, AFL-CIO; Jake Stewart, identified as president of the Steelworkers Union at a local plant; Mr. and Mrs. Walter Cannon, identified as former employees of the Respondent; Mr. and Mrs. Dave Kays, identified as two of the dischargees herein; and Christine Arterburn, the third dischargee herein. The meeting was for the purpose of arranging an organizing effort at Respondent's factory. Union membership application cards were distributed to some of the dischargees herein. There was a further meeting the following Wednesday, July 22, at 7 p.m. at the Steelworkers hall, with the same people in attendance. In addition, Mr. Stringer, identified as the vice president of the Steel- workers, and Rufus Idell, an employee, attended. Purpose of the second meeting was described by Arterburn as "we were getting in the cards, how many cards we had gotten signed and seeing how everybody reacted to it, and things like that." She had invited other employees to attend. On August 25, 1959, the Charging Party filed a petition for election, Case No. 16-RC-2587 (not published in NLRB volumes). Since the close of the hearing herein, the Board conducted an election and certified the results thereof on Feb- ruary 19, 1960. I have taken official notice of this action. A different union had attempted unsuccessfully in 1957 to organize the employees of Respondent's plant. I have taken official notice of the Board's action in Case No. 16-RC-2064. Charges filed in 1957 were either withdrawn or dismissed and I have excluded them from consideration in this record. B. Interference, restraint, and coercion The complaint in Case No. 16-CA-1272 alleges that Respondent, through its president, Jack Silven, did on or about July 29, 1959, make a speech to the em- ployees during which he told them that anyone who passed out cards in the factory or on the premises would be subject to immediate dismissal. Respondent denied this allegation. General Counsel does not contend that anything stated by Silven in a speech in July, and another in August, constituted conduct in violation of the Act, except the statement of this company rule. General Counsel asserts, in his brief, that this rule enunciated by the piesident was all inclusive, and included the prohibition of legitimate union activity on the part of the employees. Edna Beaver, an employee of Respondent from February 1951 until she was laid off in the latter part of August 1959, testified that the speech by Silven was in the latter part of July. All factory employees were called to the meeting. She quoted him as saying "that all employees were warned against company rules that you cannot solicit or distribute literature in the factory, and if caught doing so they would be dismissed from the factory immediately." Admitting she could not recall all of the speech, she quoted Silven as saying-a group of people or the Union was trying to get into the factory, they had tried 3 years before and failed, this was a free country, and "we could have our choice." She testified this was the only time she had ever heard the rule mentioned and she had never read the rule. I credit this testimony. Dave Kays testified that Silven made a speech about 10 days after his wife was fired (Opal Kays was discharged on July 27), and stated "that anyone seen passing out any kind of literature in the factory on the Linda Jo premises would be imme- diately discharged." He also quoted Silven as saying Hitler had tried to conquer the world and the union people were trying to do the same. While it appears this witness was confused as to the time of Silven's first speech, July 1959, I credit his testimony as to the content set forth in the quotation above. Dave Kays identified a copy of the Company's rule as contained in a "notice" which had been posted on one of Respondent's bulletin boards, removed by him, and turned over to General Counsel (General Counsel's Exhibit No. 2). Bessie Beckner, an employee of Respondent from April 1952 until laid off about August 19, 1959, testified all employees were asked to attend the meeting at which Silven spoke. She fixed the date as July 20. She quoted Silven as saying the employees would get two paid holidays, that while profit sharing was supposed to be in effect there were no profits, he talked about strikes up North and that "we would not want anything like that," that there were some people outside who were trying to organize and these people were former employees of his, that they were discharged because they were not good enough to work in his facory, and he said that there was literature being passed out and anyone caught distributing literature on the premises would be immediately discharged. She identified General Counsel's Exhibit No. 2 as a copy of a notice she had seen on the Respondent's bulletin board 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "either right after Mr. Silven made the talk to us-or the following week." I credit this testimony. Silven acknowledged making a speech "during the last 2 or 3 days of July." He explained that several employees had come to him and written to him requesting his opinion and advice as to what to do "with the fact that they were being sub- mitted during the last few days to an organizational drive by a union ." He had all of the employees, including supervisory personnel, assemble. His version was, succinctly stated : "This is a free country-I did not intend to influence any free thinking person into the way he or she wished to vote-that I understood that there was an organizational drive or a drive of some kind by a union inside the factory- 'I was hoping, however, that they would continue to back me.' I finished the speech by mentioning the fact that there was a rule existing in the Company that no material of any kind would be distributed on company premises or inside the factory during working hours subject to dismissal ." He then testified that during a period of 10 years several church organizations and local clubs had requested permission to come into the factory and distribute material and that the rule was to prevent a disruption of production. He testified the same rule applied to everybody , be they union or otherwise. He made a further speech on August 13 or 14, the content of which is not germane to the matter here considered, which contained a reference to Hitler, referred to by Dave Kays. Silven testified that while the rule went into effect "approximately either '51 or '52, it was only publicized when it was necessary to be publicized . We never had much problem of that kind " He also acknowledged that it was possible that many of the employees were unaware of the rule prior to his speech . Silven further testified "the only time I became aware of anything being passed inside the plant was 2 or 3 days before the speech when employees came to me with a question." Silven acknowledged that General Counsel's Exhibit No. 2 was one of several copies of the rule posted in July 1959. It reads: JULY 30, 1959. NOTICE All employees are warned that it is against company rules to solicit or distribute literature of any kind upon these premises. Any person so doing will be subject to immediate dismisal. LINDA JO SHOE CO., INC. Concluding Findings That Silven made a speech to substantially all the employees thus appears undis- puted. That it was made approximately July 29 or 30 would appear quite probable from all of the evidence. That many of the employees were unaware of the an- nounced company rule prior to his speech , was acknowledged by Silven. Two important differences appear in the testimony. Edna Beaver testified that Silven said that no one would be permitted to "solicit or distribute literature" in the factory. On the other hand Kays, Beckner, and Silven testified respectively to "passing out any kind of literature," "anyone caught distributing literature," and "no material of any kind would be distributed." The "notice" advises it is against company rules "to solicit or distribute literature of any kind upon these premises." Silven, having promulgated the rule, must be deemed to have been familiar with the content of it, actual or potential , at the time of the speech . It would appear that the testimony of Edna Beaver accurately describes the exact language used by Silven in stating the content of the rule . The injunction of Silven that "no material of any kind would be distributed" may reasonably be said to encompass solicitation of membership cards. The evidence reflects the only activity in the plant, prior to his speech, was solicitation of membership cards . I find accordingly. The second important distinction is that Silven claimed that the rule had applica- tion "during working hours " and that he so stated in his speech . No reference to this qualification was made by any of the witnesses who testified on behalf of the General Counsel, nor did counsel for Respondent seek to develop from these witnesses whether such a qualification was expressed . It would appear reasonable to conclude that in preparing the "notice " dated July 30, 1959 , Silven intended that it should contain the rule in the form of his advice to the employees. The "notice" contains no qualification that soliciting or distribution of literature "during working hours" would subject the person so doing to immediate dismissal . Accord- ingly, and for the reasons stated , I find that Respondent did not limit the application of the rule to "during working hours" and Silven did not state such a limitation in his speech to the employees. LINDA JO SHOE COMPANY 185 Respondent justifies the rule on the ground of "preventing disruption of produc- tion." The Board, in Peyton Packing Company, Inc., 49 NLRB 828 (affd. 142 F. 2d 1009 (C.A. 5), cert. denied 323 U.S. 730), has held that the Act does not prevent an employer from making and enforcing reasonable rules governing the conduct of employees on company time. Working time is for work. It is therefore within the province of an employer to promulgate and enforce a rule prohibiting union solicitation during working hours. Such a rule must be presumed to be valid in the absence of evidence that it was adopted for a discriminatory purpose. The Board has, nevertheless, distinguished a restriction or rule which would restrict employees against soliciting fellow workers, both during and outside working hours, to join in the common effort to establish a union in the plant. The employer had in effect a rule forbidding any solicitation or distribution of handbills, etc., on company property for any reason whatsoever, without the express approval of the assistant manager. The Board found "as the rule applied to the employees own time" the no- solicitation rule was illegal. Johnston Lawnmower Corporation, 107 NLRB 1086. Thereafter the same rule was the subject of an unfair labor practice proceeding and the Board found respondent, by the adoption of such a rule, imposed too restrictive a limitation upon its employees, freedom of action and that the respondent violated Section 8(a) (1) of the Act by maintaining a rule prohibiting solicitation on company property during nonworking hours. Johnston Lawnmower Corporation, 110 NLRB 1955. See also footnote 4 thereof. Where, pursuant to a settlement agreement, a company posted a notice conforming to the instructions of a Board field examiner which provided there was to be no soliciting during working hours, but the company advised employees there was to be no union discussion on company property at any time, the Board found such conduct constituted interference and restraint and thus a violation of Section 8(a)( I) of the Act. B. V. D. Company, Inc., 110 NLRB 1412. There appears no question here that the timing of this speech was after, and unquestionable as a result of, the organizational activity of the Union coming to the attention of the Respondent. It is reasonable to infer that it was with this fact in mind that the rule was announced. There is nothing in this record to indicate that the rule had ever been published, posted, or disseminated in any other form to the employees prior to this speech by Silven. The rule was not designed for the accomplishment of legitimate objectives (such as prevention of disruption of production) but had as its purpose the deterrence and circumvention of the employees' union organizational activities. Commercial Con- trols Corporation, 118 NLRB 1344, 1345. I shall accordingly find that, as alleged in the complaint as amended, the speech by the president of the Respondent implied that anyone who passed out cards in the factory or on the premises would be subject to immediate dismissal, that non- work time was included within the purview of the stated rule, that by reason of the latter said conduct by the Respondent did constitute interference with, restraint, and coercion of its employees in the exercise of the rights guaranteed them by Section 7 of the Act, and that said conduct, accordingly, is an unfair labor practice within the meaning of Section 8(a)(1) of the Act. C. The discharge of Opal Kays 1. The evidence Opal Kays was first employed by the Respondent commencing July 7, 1953. It is undisputed that she was discharged July 27, 1959. Mrs. Kays was first employed as a vamplacer (placing lacings in moccasins) for approximately 3 years. Due to lack of work she was then transferred to the job of stapling tucks in Osan shoes She was laid off from May 17 until October 1957 because of lack of work. She was reemployed and worked in the sandal department, transferred to vamplacing for a short period in the summer of 1958, transferred to pressing of sandals, laid off commencing August 1, 1958, by reason of an injury, returned to pressing, then assembling sandals, and then packing. About May 8, 1959, she was again transferred to vamplacing. However, she was hospitalized approximately 8 workdays between May 8, 1959, and the date of her discharge. It appears undisputed that she was never criticized as to the quality of her work. Mrs. Kays signed a union membership card about July 19 or 20, 1959. She testi- fied that she gave out 16 union authorization cards at the plant on July 23, 1959. However, her testimony was that she gave 12 cards to I person and 2 each to 2 other people, in other words the cards were distributed by her to only 3 people. I have noted above that she attended the union meetings held on July 18 and 22. There is 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no other evidence in this record of union activity by Mrs. Kays prior to the time of her discharge. Mrs. Kays reported to work on Monday, July 27, 1959. She checked in, waited her turn, obtained a box of shoes to lace, and laced one pair of shoes when Nelda Clark, identified as a floorlady, told her that Mr. Ross, foreman, wanted to see her. Mrs. Kays quoted Ross as saying, "Opal, Maurine is not here, you have had makeup pay, that's all of it." Maurine Cunningham was identified as the supervisor over the lacing department. Mrs. Kays asked Ross, "Do you mean I am fired." Ross answered, "Yes." She said, "I've had makeup pay but I didn't the week before." Dave Kays, husband of Opal Kays, also an alleged discriminatee herein, testified that while he was at his "heeling" machine about 10:30 a.m. on July 29, 1959, Elmer Ross, foreman, came to his machine and told him he hoped "I wouldn't feel hard at him for Curtis firing my wife." Ross is then alleged to have said to Kays, "They are going to fire you, too, because you were seen going into that union hall the other night." Kays testified that he then told Ross that it did not make any difference to him, that he had not tried to keep any secrets of anything about the Union, and that he had passed out cards during the noon break, before work, and after work and passed out leaflets at the plant gate. He testified that he had passed out 12 to 15 cards "in the month of July" and that he passed out the leaflets at the gate on July 27 after 5 o'clock in the evening. The passing out of the leaflets would thus clearly be after the time of the discharge of Opal Kays. Kays testified that he had a further conversation with Ross regarding the circumstances surrounding his wife's discharge on August 3, 1959. This conversation likewise took place at the machine where he worked. Kays acknowledged initiating the conversation, he related, "I told him I had heard rumors, different things why she was fired, and I asked him would he tell me, and he said, `Yes.' He said it was because he had seen her passing out cards " This terminated the conversation, Elmer Ross denied the alleged conversations. I do not credit this testimony of Dave Kays for reasons set forth more fully below. It is undisputed that the vamplacing performed by Opal Kays was paid for on a piecework basis. It also appears undisputed that when a piecework operator failed to earn the equivalent of $1 per hour Respondent paid what is commonly known as "makeup" pay to bring the earnings up to the minimum wage requirement. Respond- ent contends the reason for the firing of Mrs. Kays was that she was drawing makeup pay as a vamplacer. In support thereof Respondent introduced the payroll record showing the number of hours worked in each week by Mrs. Kays and the amount of makeup pay paid to her, as follows: Week ending: Hours worked Makeup pay May 8 , 1959---------------------------------- 30 $4.03 May 15,1959---------------------------------- 46 8.25 May 22, 1959--------------------------------- 38 7.04 June 12, 1959-------------------------------- 21.25 2.72 June 19, 1959--------------------------------- 45 7.35 June 26, 1959--------------------------------- 29.75 5.71 July 3, 1959---------------------------------- 25.25 2.25 July 17,1959---------------------------------- 24 1.68 July 24, 1959--------------------------------- 22.50 .19 The weeks missing were explained as vacation time and a period that Mrs. Kays was in the hospital. In other words all the worktime from May 8 to July 24 is accounted for. Silven testified that in July 1959, with Curtis, superintendent, and Weinstein, general manager, he planned to fix a maximum production for each of the items they were manufacturing, that in order to keep on producing moccasins they would have to produce them efficiently and at extremely low cost, and that they would have to eliminate makeup pay as otherwise they could not stand the pressure of competition. A reduction in the number of employees was also planned. He recited these events as occurring in the first 10 days of July. Respondent submitted un- contradicted evidence that moccasin production was substantially reduced in July and August from the number of pairs produced commencing in May 1959.3 In further support of its contention that the staff of vamplacers was reduced in July 3 In the week of May 11-15 an average of 3,504 pairs per day were produced, in the week of July 20-24, the week preceding Mrs flays' discharge, the average number of pairs produced per day was 1,653 ; in the week of August 24-28, the week following the layoff of some of the other witnesses, the total number of pairs produced in that week was 863 LINDA JO SHOE COMPANY 187 Respondent produced a list of the 46 persons so employed May 1, 1959. This group was reduced to 21 on July 27 and to 9 on August 28, 1959. Respondent produced a separate list of the vamplacers employed on July 24, 1959, which reflects that Opal Kays was the only vamplacer who drew makeup pay that week. Silven acknowledged that he was consulted in connection with the termination of Mrs. Kays and stated it to be his policy that no employee with over 3 months' experience would be fired unless he knew about it. He set forth his recognition of the cost of training of his employees as the reason for the related instruction. Silven testified that the only reason for the discharge of Mrs. Kays was the fact that she had more makeup pay than any person discharged or separated after her. Silven denied any knowledge on his part, at the time of Mrs. Kays' termination, that she had attended any meetings at which the formation of a union had been discussed or considered, that she had gone to a union hall downtown, that she had signed a union card, or that she had passed out union cards or engaged in any other union activity. Elmer Ross is identified above as the assistant to Superintendent Curtis. He testi- fied that the sandal production dropped at a time they were increasing production on moccasins and transferred Opal Kays to the latter work. He identified Maurine Cunningham as his "forelady" who had moccasin lacing under her supervision. He also testified that Opal Kays was terminated because she was the only vamplacer that was on makeup pay at the time of her termination. Ross was inaccurate in his testimony that he did not discharge Opal Kays.4 2. Findings The complaint alleges that the discharge of Opal Kays on July 27, 1959, was for reasons proscribed by the Act. General Counsel, in his brief, urges that the discharge should be found to be a pretext. He urges that Opal Kays passed out approximately 16 cards and literature prior to her discharge. It is clear from the dischargee's testi- mony that the 16 cards were passed to only 3 employees, there is nothing in this record which would permit a finding that this activity came to the attention of the Employer, except the testimony of Silven that some unidentified employees who had been approached to join the Union had reported to him "during the last few days," immediately preceding his speech, that they were being submitted during the last few days to an organizational drive by the Union. While it is true Sam Pollard testi- fied, "I think I seen Dave's girl and his wife (Opal Kays) passing out leaflets," and he also testified, "I don't know if it was during July or not." Elmer Ross testified that he saw Dave Kays passing out union leaflets in July 1959 and stated it could have been a little bit before his wife's discharge. In view of the testimony of Dave Kays that he passed out leaflets on July 27 after 5 p.m., and in view of the absence of any evidence of such activity by either Opal Kays or Dave Kays prior to her dis- charge, I find there is no evidence that either of these individuals passed out leaflets prior to said discharge. The speech by Silven and the posting of the notice treated in the preceding section were subsequent to this discharge. General Counsel urges that at the time Opal Kays was transferred from stapling sandals to vamplacing she was told that the transfer was only until the sandal work picked up again. He also urges, as the evidence indicates, that when work was slack the Company split the work, resulting in employees working 221/2 hours a week, eliminating the need for a reduction in force. The Board and the courts have held in numerous cases that it is not the function of the Trial Examiner, nor the Board, to determine if a discharge is justified, rather the question is whether the discharge was for reasons proscribed by the Act or, otherwise stated, for reasons which constituted conduct in derogation of the provisions of and rights guaranteed under the Act. The only evidence reflecting knowledge, on the part of the Respondent, of the union activities of this dischargee is the testimony of Dave Kays relative to his two conversations on July 29 and August 3, 1959, with Elmer Ross, which I have not credited. Kays related that on the earlier date Ross advised him that Ross hoped Kays would not feel hard at him for Curtis firing his wife. This record is void of any showing of any personal relationship between Kays and Ross at any time, and 4 Ross testified he was going to talk to Opal Kays one evening but she had already left the building so it was the next morning when she was terminated. It appears un- disputed that she was terminated on Monday morning, July 27 He testified that it was Maurine Cunningham who told her she was terminated The parties stipulated that Maurine Cunningham was on vacation on July 27 He also testified that he did not talk to Opal Kays personally and that Maurine Cunningham "had a big makeup slip on her" It is obvious from the evidence that the last makeup slip was for 19 cents 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ross denied such a relationship existed. The testimony of Opal Kays unmistakably was that it was Ross, not Curtis, who fired her. It is clear from Silven's admissions that Silven had approved the firing. Since Kays and his wife attended the union meeting together on the night of July 22, it must be assumed that Kays' testimony that Ross told him he (Kays) had been seen going into the union hall implied that Mrs. Kays was likewise seen going into the union hall, and was discharged for that reason. Kays would then have it believed that Ross, who first (July 29) ascribed the firing to Curtis and to the attendance of Mrs. Kays at a meeting in the union hall, in answer to the further inquiry on August 3 ascribed the discharge to the fact that she had been seen by him (Ross) passing out union cards. Reserving further com- ment on the demeanor and other testimony of the witness Kays for discussion below, I do not credit his testimony of these alleged conversations. I find the facts here distinguishable from the recent decision of the Board in which it found a discriminatory discharge absent evidence of a policy of discharging em- ployees for failure to make production on piecework operations. Walton Manufac- turing Company, 125 NLRB 485, and footnote 8 thereof. This record does not reflect that other employees with more makeup pay were retained. The abruptness of a discharge and its timing have been found to be persuasive evidence as to motivation under circumstances distinguishable from those here con- sidered. N.L.R.B. v. Montgomery Ward & Co., Inc., 242 F. 2d 497, 502 (C.A. 2); N.L R.B. v. Southern Desk Company, 246 F. 2d 53, 54 (C.A. 4). The circumstances here may well permit a suspicion as to Respondent's motive for discharging Opal Kays. Suspicion, however, is not the substantial evidence of probative value requisite to support the finding of a violation of the Act, here sought. In view of the absence of competent evidence that Respondent had knowledge of Opal Kays' union membership and activities and Respondent's testimony that she was discharged because she was the only vamplacer on makeup pay, I find that General Counsel has not established by a preponderance of the evidence that she was dis- criminatorily discharged .5 I shall, accordingly, and for the reasons indicated, recom- mend a dismissal of this allegation of the complaint. b. The discharge of Christine Arterburn 1. The evidence Christine Arterbum was employed by Respondent commencing January 1955 and ,discharged July 30, 1959. When she was first employed her job was rolling wedges for about 2 years. She then cemented shoes, roughed shoes, and did a number of different jobs. During the last 11/a years of her employment her job was cementing soles. She described her job in the application of cement to a sole as being on what is commonly termed a "hand feed" machine, as distinguished from an automatic machine. This distinction becomes important hereafter since it is clear from the record that the hand feed operation was used on what are known as "crepe" soles while an automatic machine was used on what are called "slab" soles. The "hand feed" machine had small rollers against which the sole was held while the cement came out of a little nozzle, the operator being required to hand turn the sole in order that the cement was placed in sufficient quantity along the entire outer edge of the sole. The operation following hers was known as "spotting and pressing soles" which included the application of cement to the upper portion of the shoe and placing it in the machine so that it would press the upper portion against the sole and cause the adhesion. The responsibility of Arterburn was the placing of the cement on the soles only. I have noted above that Arterbum was one of the three employees of the Respond- ent attending the union organizational meetings on July 18 and 22. Her testimony is undisputed that she signed a union membership card about the middle of July 1959, she was uncertain of the date, obviously it must have been not earlier than the meeting of July 18, insofar as this record is concerned. She also testified that she passed out some 15 or 20 union membership cards in the 2 or 3 weeks before she was fired. Again, insofar as this record is concerned, this activity must have been between July 18 and 30, since one purpose of the meeting of July 18 was getting cards. Arterburn credibly testified that at 10:30 a.m. on July 30, 1959, Sam Pollard came to her and said "he didn't want me to think bad of him because it wasn't any of his doing, but Mr. Curtis found out I was working for the Union and he was going to fire me." She made no response and they proceeded to the office of Super- b Bowling Green Manufacturing Company, 108 NLRB 1608. LINDA JO SHOE COMPANY 183, intendent Curtis where Elmer Ross, foreman, was also present. Arterburn then related that Curtis said "he thought he had taught all of the employees a lesson when they fired most of the employees who were working for the Union at the last election and that we know that he didn't want a union down there and he didn't intend to have union down there, and anybody seen working with these union men or going to the meetings or anything, they were going to be fired." Arterburn then advised Curtis that the union representatives had advised her that the laws of the United States said that employees had the right to have a union if they wanted one. To this Curtis replied that neither the union representatives nor the Government was running the plant, that he was, and that she was fired. It was stipulated that Superintendent Curtis and Foreman Ross were supervisors under the Act. Ross left the employ of Respondent about 1 week prior to the hearing and at that time Sam Pollard replaced him as foreman. Respondent does not concede that Sam Pollard was a supervisor under the Act prior to that time. Since Arterburn quoted Pollard as her "foreman," I next examine the question of the supervisory status of Pollard. However, in view of the remarks of Superin- tendent Curtis, which I have found were made, a finding as to the status of Pollard is not decisive of the issue of discriminatory discharge. Arterburn testified that Pollard "told us all what to do and supervised us" for about 2 years. She acknowledged that Pollard worked under Ross, but stated that Pollard exercised more supervision over her than Ross. Prior to the last week of her employment Pollard had talked to the group a few times regarding poor quality work, but always in a group. Arterburn stated there were three that were cementing soles at that time. When something went wrong with a sole on which she was working, or something went wrong the the machine, she would go to Pollard. This was piecework and as each lot was worked on it would be entered on a worksheet. At the end of each day these worksheets were turned over to Pollard who checked them for accuracy. Some times Pollard would assign them to other work. Mildred Dugan, Respondent's witness, worked on a slab sole machine, substantially next to that of Arterburn. Dugan testified that a lot of times Sam Pollard came by and corrected her on some work, maybe it did not have enough cement on or not close enough to the edge, and he would tell her "watch your soles or these are too far from the edge or they have got skips in them or some- thing." Dugan also acknowledged that Pollard approved her work tickets. Pollard testified that prior to becoming foreman he worked under Ross. Pollard described his work as pushing racks, trying to keep the work flowing, and filling machines with cement. His work "mostly was over in the sole department, bottoms," this was part of department 50. Pollard denied ever making any recommendations to Ross with respect to hiring, firing, or disciplining anyone and testified that it was Ross or Curtis who decided if someone should be disciplined. Pollard testified that he tried to keep production going, that he watched the operators so as not to let one get ahead of the other, and if one operator was slow "well I would try to rush her up a little bit, tell her to speed up a little bit if she could," when they did not speed up he would go to Ross and ask him what to do. Pollard acknowl- edged having signed a warning slip (Respondent's Exhibit No 16) in the place indicated for a foreman's signature and he also acknowledged having filled out a portion of it. Pollard also acknowledged that in a statement to a Board investi- gator, August 20, 1959, he stated that he was a foreman in department 50, having hired and fired on his own without clearing with anyone. While acknowledging this last statement was his sworn statement Pollard testified that it was a false statement. Pollard also testified that when cementers did bad work that he would tell them to get it straightened out. Elmer Ross, foreman, described Pollard as his assistant. Ross identified Maurine Cunningham as his forelady who had moccasin lacing under her supervision. Ross acknowledged that Pollard had supervisory duties, among them being responsibility for having warning slips signed. Ross also testified that Sam Pollard was the foreman working under his supervision who had responsibility for the work being done in department 50 with relation to the putting of cement on soles. Superintendent Curtis testified Pollard attended quality control meetings held weekly. attended by foremen and super- visory personnel. The related evidence and other evidence in the record leave no doubt that Sam Pollard was a supervisor within the meaning of the Act on July 30, 1959, at the time of the discharge of Christine Arterburn. I find accordingly. 2. Respondent's explanation of Arterburn's discharge Respondent contends that the sole reason for the discharge of Christine Arterburn was faulty work. Arterburn, whom I credit, denied that there was any discussion 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of specific work, or of the exhibits supplied by Respondent indicating faulty work on her part, at the time of her discharge. I deem it appropriate to set forth Respondent's contentions. This evidence, however, is conflicting and confusing. It is undisputed that the manufacturing process includes the labeling of shoes by lots called "Case No." This "Case No." appears inside the shoe when it is finished. Each lot of material, i.e. (uppers, soles, etc.), was accompanied by a "tag" which indicated the "Case No.," the customer, the work to be done by the various operators in the plant, and on its reverse side it carries a listing of the various type of work being done, with a space after each item where the operator who performed the particular operation was to place his or her initial to indicate who did the work. These "tags" were kept by the Respondent and they could at any future time determine who performed a particular operation on a particular shoe by checking the "Case No." in the shoe and then obtaining the corresponding tag (see Respondent's Exhibit No. 9). A second means of checking was the daily work tickets (see Respondent's Exhibit No. 12) on which each operator would list the date, clock number, her name, operation, each "Case No." on which she worked that day, and the number of pairs of shoes in that "Case No." It is un- disputed that no two employees who did sole cementing worked on the same "Case No." It appears that Christine Arterburn, during all times here considered, worked entirely on "crepe" soles and Mildred Dugan worked at all times on "slab" soles. A third operator, Louella Simms, likewise worked on "crepe" soles. Arterburn testified that 2 days before she was discharged she trained another girl, Jane Cole, to cement crepe soles, and this testimony was not disputed. Jack Silven, president, testified that it is common practice for a certain number of shoes to be returned by reasons of defects. He does not concern himself with returns unless they exceeded 11/2 percent of production. He testified that in June and July the returns indicated more shoes were coming back for one specific reason- the soles were coming off-and at the same time he received customer complaints. Respondent introduced a letter from the Shoe Corporation of America, dated July 15, 1959, which states that the soles were not properly attached. While some of these shoes, the letter states, were returned, this record contains no evidence as to which of the three cementers was responsible. Silven testified about similar telephoned complaints from Karl's Shoe Stores, Ltd., and a threatened loss of this account. Silven requested the customer to outline the complaint by letter so he could show it to the supervisors, the letter is dated August 7, 1959, while the tele- phone call allegedly was in the week of July 20-25. Silven testified that shoes returned from Karl's were received in his office on either July 29 or 30, 4 or 5 days after the telephone call, and he identified Respondent's Exhibits Nos. 2, 5, and 6 as being included in that group. Silven testified that he then told Curtis that either "the shoes would disappear or people would disappear that had responsibility for shoes such as these." Later the same morning Curtis brought to Silven's atten- tion a bundle of soles which had been produced by the same operator. Curtis advised Silven that she was the "only one we had who was qualified to do crepe soles as well as she did, because nobody else had operated the crepe sole machine as consistently as she had and that she was an old operator." Silven then related that he checked the record of the employee to ascertain if they had any problem with the particular employee before. He ascertained that she had been warned by word of mouth; he first stated, then withdrew, an assertion that she had received warning slips. He told Curtis that he would not allow any more work of this type or by this employee to be produced in the factory. Silven denied any knowledge of the activity of Arterburn on behalf of the Union. Silven described the company policy on warning slips as "that whenever a matter is big enough to be pointed to the attention of the foremen and a meeting with the particular employee is neces- sary, a warning should be signed." He advised that there was no exact number of warning slips because they do not attribute the same importance to a warning slip about 1 pair of shoes as they would to a warning slip about 200 pair of shoes. Henry L. Curtis, general superintendent of Respondent, supported the testimony of Jack Silven and alleged they were getting a lot of shoes back in the summer of 1959. He testified that 19 of every 20 pairs of shoes returned were "crepe soles." He acknowledged there were failures in seams and other defects but stated that a large percent were soles coming off. It was his function to inspect returns and allow appropriate credits, in doing so he determined whether there was faulty workmanship or faulty material. Curtis advised Elmer Ross, foreman, that he wanted a strict thorough examination made of the soles hourly, if he had operators that he could not do anything with to let Curtis have them. Curtis quoted Silven as advising him that Karl's had threatened to quit them, and quoted Silven as LINDA JO SHOE COMPANY 191 having said, "If we lose this account we have lost 50 percent of our business" (Sil- ven's testimony was that Karl's purchased approximately 15 percent of the total production). Curtis had a check made to find out who did the soles involved, then walked up to the machines and examined the work and advised Ross, "These shoes was done by Christine, and I want you to watch her work very closely, because we are going to lose that account." A few minutes later Pollard came in with a case of soles which Curtis examined and then took to Silven. Upon instructions from Silven he called Christine in and discharged her, first having pointed out "skips" (places lacking cement or enough cement) and "narrow places" (places where the cement was not as wide as required). He then had the bundle of soles (Respondent's Exhibit No. 23) taken by the warehouseman and locked up where they were kept until requested in connection with the instant hearing. Curtis denied any knowledge of the activity of Arterburn relative to the Union, he denied that any reference was made to the Union or union activity in his conversation with Arter- burn at the time of her discharge. Curtis stated that nothing was said at that time except, "I was pointing out to her the defects of the cementing on these soles." It would thus appear undisputed, as contended by Arterburn, that she was not shown the shoes allegedly returned by Karl's, which are in evidence, at the time of her discharge. Curtis described returns of shoes as having been as low as 135 pairs a month and then going up to as high as 2,000 pairs a month. He then stated the number of returns as between 134 and 450 pairs a month, but did not know what the situ- ation was in July 1959. He estimated that 85 to 90 percent of the returns were crepe and the remainder were slab soles. He was unable to testify as to the month in which the peak of returns were reached and unable to estimate the number of shoes returned between August 1958 and August 1959. Curtis acknowledged sending a letter to the Texas Unemployment Commission on August 3, 1959, in which he stated there were about 2,000 pairs of shoes which had been returned in a period of 12 months because of soles coming off. He acknowledged that Arterburn was not responsible for all of these complaints but claimed she was responsible for a large percent of them. Curtis was unable to estimate the production of crepe soles in terms of pairs per day, week, or month, admitting that he might miss it as much as 1,000 pair a day, however, he then estimated the daily production as 5,000 or 6,000 of which 50 percent would be crepe. Curtis acknowledged that a warning system was set up to be fair to operators "to keep any foreman from firing an operator on the spur of the moment." The system was set up 2 or 3 years before the hearing. He testified that if they had a bad case now and then it was something they expect, that if it happens a few times close enough together they feel the individual should sign a warning slip. If it happens again they have another warning slip signed. After the third or fourth one, there is nothing ironclad about it, the supervisor talks it over with Curtis and they decide if the operator should be given another chance. There is no evidence here that Arterburn was ever given a warning slip, and she denied ever receiving one. Curtis testified he thought Arterburn had signed a warning slip, later he acknowledged that he did not know whether she had signed a warning slip or not. Foreman Ross testified that in the summer of 1959 they were receiving return shoes at the rate of 300 to 400 pairs a day and the majority were because the soles came loose from the uppers. He testified that Arterburn cemented both slab and crepe soles. Ross testified that the number of returns never decreased much from the time he started until approximately when he left. He also testified that in the last 3 months he was there, September to December 1959, they were not receiving 50 percent as many returns as they had been 6 months previously, he then admitted that reduction in production might account for the decrease in the number of returns. Testifying that 75 percent of the returns were due to loose soles, he testified that as between crepe soles and slab soles "we got more slab back." He admitted that two of the cementers worked on crepe soles and only one on slab soles. He identified the other cementers as Louella Simms and Mildred Dugan .6 Ross testified that there were two machines for cementing slab soles and two machines for cement- ing crepe soles, he then testified that both Louella Simms and Mildred Dugan worked 25 percent on slab soles and the other 75 percent on crepe soles.? Ross acknowledged that some of the returns were chargeable to each of the three op- erators. 9 The record is corrected at page 314, line 24 ; page 315, line 18 ; and, page 316, line 17, to correctly reflect the name as Mildred Dugan not Mildred Doolin. 7 Mildred Dugan, Respondent's witness, testified she worked on slab soles. 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ross testified that he selected the soles which are Respondent's Exhibit No. 23 and told Pollard to take them into Curtis' office because there was cement all over the edges and they had "skippers" on them. Ross admitted there was a warning system and he had been advised of it when he first went there by Mr. Curtis, he acknowledged there was laxity in the application of the rule. He was uncertain how many warning slips a person received before discharge but thought it was three. Ross acknowledged that Curtis does not normally fire people under Ross' super- vision and he was unable to recall any other occasion when this happened, except the discharge of Christine Arterburn. Pollard testified that Curtis showed Arterburn some of the shoes returned by Karl's at the time of her discharge, that Curtis showed her the soles which were on a rack (Respondent's Exhibit No. 23), "told her that was the third time she had been warned and that was all." Pollard then testified he was present about a week before when Curtis had warned her that she was not cementing soles properly and that she had to correct her work, that he was also present on earlier occasions when she was so warned, that it all related to cementing crepe soles. Pollard denied there was any reference to the Union during the conversation between Curtis and Arterburn. Pollard first estimated the number of returns as 10 to 12 cases a day, 36 in a case (360 to 432). He then said not every day but once or twice a week during the summer of 1959. He then admitted he would not know exactly how many returns there were. Pollard acknowledged that Arterburn had not signed warning slips, then testified that they just were "not signing those slips then," obviously became confused, and admitted they had been signing warning slips as far back as 1958. Pollard then testified that Ross had told him to watch the work of Arterburn and if she did not straighten out to take them in to Mr. Curtis. He then admitted that he did not discuss "these soles" with Ross but picked them up and took them directly to Curtis' office.8 Mildred Dugan, another cementer, testified that immediately following Arterburn's visit to Curtis' office Arterburn advised Dugan that she had been discharged for "bad soles." Dugan had been employed by Respondent for approximately 10 years and was cementing slab soles. She acknowledged talking to Arterburn on one or two occasions in July about the Union Mrs. Dugan also testified that she had not talked to anyone including Respondent's counsel and Silven about her testimony, prior to taking the stand. 3. Findings The discharge of Arterburn on July 30, was immediately before or the day after Silven's first speech to all the employees. That Silven was opposed to the employees' selection of union representation, as he had a right to be, may be implied from the excerpt he quoted, "I was hoping, however, that they would continue to back me." That he had knowledge of solicitation being conducted among employees, for union membership cards, is undisputed from his own testimony that employees wrote to him and talked to him about this solicitation 2 or 3 days before his speech. This solicitation was the cause of and reason for his speech and announcement of the no-solicitation no-distribution rule and the publication of the "notice" set forth above. Only Christine Arterburn and Dave Kays were involved in this solicitation in substantial numbers. 15 to 20 and 12 to 15 cards, respectively. In spite of the denials of Silven, Curtis, Ross, and Pollard. I find it reasonable to infer, under the circumstances reflected by the evidence herein, that Respondent did know of the activity of Arterburn in soliciting union membership cards from other employees in the plant prior to her discharge. President Silven acknowledged no concern where returns of production were less than 1'/2 percent. There is no evidence herein as to the percent of Arterburn's work which was returned, or of the percent of total work returned. Respondent con- ceded that all three sole cementers had done faulty work. While Arterburn ob- viously worked on "crepe" soles, her foreman, Ross, testified most of the returns were "slab" soles. Ross was confused as to which operators worked on crepe and slab soles, Dugan's testimony being she worked on slab soles. The evidence is that only one operator worked on slab soles. The most that can be said of the testimony relative to number of returns is that it does not constitute substantial evidence of probative value herein as the disparity is too great, i e., Pollard, 360 to 432 pairs a day or a week, Ross, 300 to 400 pairs a 8 Pollard denied having any conversation with . ilven, any supervisor in the plant, or Respondent's attorney relative to his testimony, prior to testifying. LINDA JO SHOE COMPANY 193 day, Curtis, 134 to 450 pairs a month; also 2,000 pairs in a month, and in a year. One must assume such testimony was mere guesswork, not credible evidence. Respondent advances a concern over the loss of an account, Karl's, as the immediate cause of the events which led to Arterburn's discharge. Superintendent Curtis says he showed this faulty work to Foreman Ross and told Ross to watch Arterburn. Curtin makes no claim of exhibiting these shoes to Arterburn, at variance with Pollard's assertion that Curtis did so. The inconsistencies of Respondent's witnesses even extends to the faulty shoes (Respondent's Exhibit No. 23), allegedly the immediate cause for the discharge. Pollard asserted he took them directly to Curtis, bypassing Ross. Ross claims he directed Pollard to take them to Curtis. Superintendent Curtis and Foreman Ross testified to the use of a system of written "warnings" before an employee is fired. None were certain Arterburn had ever been required to sign a "warning," Pollard admitted Arterburn had never signed a warning slip. The conflicts and contradictory testimony of Respondent's witnesses, some of which has been set forth, Pollard's admission of giving a false statement under oath, the unbelievable assertions of Pollard and Dugan that no one had prior knowledge of their testimony, cause me to attach no credibility to the testimony of said witnesses to the extent their account of the circumstances surrounding the discharge of Arterburn varies from her account thereof. Arterburn, described by Curtis as the "only one we had who was qualified to do crepe soles as well as she did," was discharged summarily, without the customary written warning of inadequacy or incompetency. The timing was coincidental with Silven's speech announcing the no-solicitation rule and Arterburn's organizing activity.9 Foreman Ross customarily effected discharges of those under his super- vision, while here Superintendent Curtis must have attached sufficient importance to this discharge to effect it personally. I am constrained, therefore, to find the circum- stances surrounding the discharge of Arterburn to have been those she enumerated. The preponderance of credible evidence clearly establishes that Arterburn was discharged for her union activity and not for incompetence. I so find. The existence of some justifiable ground for discharge or layoff is no defense if it was not the "moving cause." Wells, Incorporated v. N.L.R.B., 162 F. 2d 457, 460 (C.A. 9). In view of the above facts, and inferences reasonably drawn therefrom, and upon the entire record as a whole, I believe and find that Respondent's purported reason for discharging Arterburn was a pretext, and that the real reason and "moving cause" was the known union and concerted activity of said employee and said discharge constitutes discrimination with respect to her hire and tenure of employ- ment to discourage membership in the Union, and was violative of Section 8(a)(3) and (1) of the Act. E. The discharge of Dave Kays 10 1. The evidence Dave Kays was first employed by the Respondent on March 17, 1954, and dis- charged on September 16, 1959. Respondent does not deny the discharge but claims that it was for cause. I have noted above that Dave Kays was one of the three dischargees herein who attended the union meetings on July 18 and 22, held for the purpose of attempting to organize the employees at Respondent's plant. Kays signed a union card about July 20, 1959, and testified that he passed out 12 or 15 cards to other employees in the month of July. He also passed out leaflets outside the plant the day his wife was discharged, July 27, after 5 p.m., also after his discharge. Kays first worked as a floor boy for approximately 2 years, thereafter until the time of his discharge he was employed as a heeler, a machine operation, securing soles by driving nails through the shoe into the sole. Each "lot" of work was accompanied by a "tag," which I have described above (see Respondent's Exhibit No. 9). The "tag" specified the type of heel to be put on that particular lot. Kays acknowledged that on August 20, 1959, he and the other heeler, Mike Alterbaumer, put the wrong heel on five or six cases of shoes. This error was called to his attention by Superintendent Curtis who required both operators to sign a warning slip (Respondent's Exhibit No. 10). Kays acknowledged 9 See Baltimore Steam. Packet Company, 120 NLRB 1521 ; Archer Mil18, Inc, 118 NLRB 930; Southern Desk Company, 116 NLRB 1163 10 Page 19, line 22 , and page 21, line 6, of the record of the transcript are corrected to read "Kays" rather than "Case " 586439-61-vol 129-14 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he had not read the "tag" or ticket. At the hearing Kays testified that cus- tomarily they are told when a new heel is coming through and on this occasion he was not told. Kays identified the new heel as some leather top heels, thin heels. Kays and Alterbaumer then corrected the work, removing the incorrect heels. On September 4, 1959, Kays and Alterbaumer were again requird to sign a warning slip for having put the wrong heels on about 12 cases of shoes (Respondent's Exhibit No. 11). Again Kays' reason for the error was "didn't read ticket." Kays, upon inquiry as to whether he originally did any of these heels, testified, "I didn't check my book." The 12 cases admittedly required correction. Superintendent Curtis admitted that when he discovered wrong heels on shoes he did not check to see whose work it was but had the two heelers sign warning slips each time he found poor work. He testified that if the employees do a bad case of shoes now and then, it's something that is expected. He also testified the warning slips are destroyed if he finds out the individual was not responsible. He then explained that the faulty work is usually present during the discussion of it, and the operator admits being responsible for it. On September 16, about 1:30 p.m., Kays was again called to Curtis' office and told to sign a warning slip for having put the wrong heels on shoes. Kays, on his warning slip (Respondent's Exhibit No. 16), stated, "I didn't know what kind of heel that was." The "tag" called for "teardrop spectro" heels. The evidence is that wrong heels had been put on three cases. "Cases Nos." 95051, 95054, and 95055. Kays admitted he did not say anything at that time about not doing the work." Superintendent Curtis advised Kays he would talk to Silven. Curtis quoted Silven as saying "Out of all the trouble that we have had with him in the past without all of these mistakes, I think we should replace him." At 2 p.m. Curtis called Kays to his office, Kays then advised Curtis that Bob Burrows, a heel scour, had done some of the erroneous heeling. Burrows' operation, smoothing heels, followed Kays' heeling. Kays testified that when Burrows caught up on his work, he would do heeling. Burrows advised Curtis he had put the wrong heels on "Cases Nos." 95051 and 95055 and listed that work on Kay's worksheet (Respondent's Exhibit No. 12), according to Kays. Kays contends only these two "Case Nos." were discussed. Curtis asserts three "Case Nos." were discussed, the third being 95054, but was uncertain if Burrows had done two and Kays one or vice versa. Kays' worksheet (Respondent's Exhibit 12) lists "Case No. 95054 (20 pairs) as item 14, "Case No." 95055 as item 20 (20 pairs), and "Case No." 95051 as item 21 (25 pairs). There are 44 items ("Case Nos.") listed as work done that day, prior to the 2 p.m. meeting, when Kays was discharged. I credit Curtis' testimony that three "Case Nos." involving "teardrop spectro" heels were discussed. Kays did not deny that he did "Case No." 95054 on September 16, 1959, that the "tag" called for a "teardrop spectro" heel, nor did he deny the work was done incorrectly, the heel he used was a regular "oak top heel." Respondent presented evidence that Kays, prior to April 1958, failed to report to work on some unspecified Monday mornings and as a result was discharged in April. Superintendent Curtis sent for him and rehired him 2 or 3 days later. On December 8, 1958, Kays signed a warning slip acknowledging a failure to report on Monday morning on five occasions. Respondent denied knowledge of any union activity by Kays prior to his discharge. I have set forth above Silven's admission that inquiries by employees who had been solicited for union membership came to his attention prior to his July speech. He also admitted knowledge that literature was passed out, outside the plant, and was uncertain if his knowledge was obtained before or after his speech. Superintendent Curtis acknowledged that employees sought his advice on whether they should join the Union, but he was uncertain as to the time. He denied ever talking to Silven about the Union but stated he (Curtis) was certain Silven knew of the organiza- tional drive "the same as I did." I do not credit Respondent's denials of knowledge of the union activities of Kays prior to his discharge. It appears that Kays did solicit 10 or 12 membership cards in July, and did pass out literature on July 27. It may reasonably be inferred these activities came to the attention and knowledge of the Respondent prior to the discharge. I so find.12 211 do not credit Kays' testimony that Alterbaumer also signed a warning slip at this time. Even assuming Alterbaumer signed a warning slip there is no evidence to reflect faulty work on his part on September 16. 121 have, nevertheless, not credited Kays' testimony of alleged conversations with Ross on July 29 and August 3, for reasons stated above. LINDA JO SHOE COMPANY 195 2. Findings General Counsel urges that previous to August 20, 1959, whenever the company began using a new type heel, they always told Kays and the other operators several days beforehand to be on the lookout for that type of heel, that it would be coming through in a few days, that the failure to do this resulted in Kays' applying the wrong heels on August 20 and September 4. This is the testimony and contention of Dave Kays, whose testimony, in large measure, I have not credited being mindful of his demeanor, the evasions and inconsistencies therein. Kays acknowledged that when he wanted to know something he would ask Sam Pollard. Kays testified that when they were out of regular heels he would ask Pollard about a substitution. Ad- mitting the "tag" accompanying each "lot" of shoes specified the heel to be used, Kays admitted, "I forgot to read the ticket" on both the August 20 and September 4 errors. General Counsel contends there was disparate treatment between Kays on the one hand and Alterbaumer and Burrows on the other. He asserts Respondent punished only the union adherent. It is clear from the evidence that Burrows signed only two warning slips. There is no credible evidence that Alterbaumer did negligent work on September 16, or that he signed a warning that day. Curtis' credited testimony refers to only three cases of heels incorrectly done on that date. I find no disparate treat- ment under these circumstances. It is also suggested that Respondent embarked upon a campaign of watching Kays' work closely and creating situations to cause these errors, that the discharge accord- ingly was a mere pretext. The errors were clearly the result of Kays' failure to read the instructions on the ticket and application of the wrong heels. There were three warnings in less than 1 month. To hold this discharge a pretext under all the cir- cumstances presented here, would be to engage in suspicion, unsupported by the requisite substantial evidence.13 I find accordingly. In a similar situation, the Board found a discharge not discriminatory where there was evidence of an employee's inefficiency or negligence, the employee had been warned about his work before discharge (also three warnings in a 4-week period), and failed to heed the warnings. Edwin S. Rouch, et al., d/b/a Rouch's Sawmill, Ltd, 94 NLRB 298. Therein the Board said: "Although the matter is not free from doubt, we are not convinced, on the record as a whole, that the Respondent was motivated by antiunion animus." Similar to the Board in the Rouch's Sawmill case, I find, that while the matter is not free from doubt, the record does not contain the preponderance of substantial evidence essential to establish Respondent was discriminatorily motivated in effec- ting Kays' discharge. Accordingly, for the reasons indicated, I shall recommend a dismissal of the com- plaint in Case No. 16-CA-1293. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above , occurring in connec- tion with Respondent's operations described in section I, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States, and such of them as have been found to constitute unfair labor practices, tend to lead to labor disputes obstructing commerce and the free flow of commerce. V. THE REMEDY Although I have recommended dismissal of the complaint in Case No. 16-CA-1293 and dismissal of those portions of the complaint in Case No. 16-CA-1272 alleging that the discharge of Opal Kays constituted a violation of Section 8(a) (3) and (1), I have found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and desist >a In N.L.R.B. v. Whiten Machine Works, 204 F. 2d 883 (C A. 1), the court stated the principle of law applicable here : "In order to supply a basis for inferring discrimination it is necessary to show that one reason for the discharge is that the employee was engag- ing in protected activity. It need not be the only reason, but it is sufficient if it is a substantial or motivating reason, despite the fact that other reasons may exist. Although the discharge of an inefficient or insubordinate union member or organizer is lawful, it may become discriminatory if other circumstances reasonably indicate that the union activity weighed more heavily in the decision to fire him than did dissatisfaction with his performance." 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD therefrom and take certain affirmative action designed to effectuate the policies of the Act. It having been found that the promulgation and announcement of Respondent's plant rule interferes with, restrains, and coerces employees, I recommend that Re- spondent be ordered to discontinue maintaining a rule broadly forbidding its employees from engaging in solicitation and other union activities on company premises during their nonworking time.14 Respondent having discharged Christine Arterburn because of her union activity, I recommend that t.ie Respondent offer her immediate and full reinstatement to her former or substantially equivalent position without prejudice to her seniority and other rights and privileges, and make her whole for any loss of pay she may have suffered by reason of Respondent's discrimination against her by a payment to her of a sum of money equal to that which she normally would have earned as wages from the date of her discharge, July 30, 1959, to the date when, pursuant to the recom- mendations herein contained, Respondent shall offer her reinstatement, less her net earnings during said period. Said backpay shall be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. It is also recommended that the Respondent be ordered to make available to the Board, upon request, payroll and other records to facilitate the checking of the amount of earnings due. In view of the nature of the unfair labor practices committed, the commission of similar and other unfair labor practices reasonably may be anticipated. I shall therefore recommend that the Respondent be ordered to cease and desist from in any manner infringing upon rights guaranteed to its employees by Section 7 of the Act. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS of LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail, Wholesale and Department Store Union, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. By promulgating and announcing its rule prohibiting solicitation and other union activities on company premises during nonworking time, under penalty of dis- missal, Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 4. By discriminating with respect to the hire and tenure of employment of Chris- tine Arterburn, thereby discouraging the free exercise of the rights guaranteed by Section 7 of the Act and discouraging membership in and activities for the above- named labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. By its discharge of Opal Kays on July 27, 1959, and Dave Kays on September 16, 1959, Respondent did not engage in unfair labor practices within the meaning of Section 8(a) (3) and (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] 14 National Steel & Shipbuilding Corporation, 126 NLRB 900. Gibbs Automatic Division , Pierce Industries, Inc. and Inter- national Union United Automobile , Aircraft & Agricultural Implement Workers of America , UAW-AFL-CIO. Case No. 25-CA-1083 (formerly Case No. 35-CA-1083). September 30, 1960 DECISION AND ORDER On February 29, 1960, Trial Examiner Phil Saunders issued his Intermediate Report in the above-entitled proceeding, finding that the 129 NLRB No. 23.